erred in saying: 'I have indicated what is, in my I was. ordered to use brick clay. If the facts be so, judgment, a lawful order. Let me now say what his discharge ended the contract relation between wilful' in law may be. In common parlance the parties, and it was not necessary for the dewilful means intentional as distinguished from fendants to show that they had sustained any accidental or involuntary; doing one's own will loss. It was enough that they might sustain without regard to the will of others. There is loss in the future, and the plaintiff, having been another kind of wilful meant where penal crimes paid up to the time of his discharge, would or criminal offences are defined by statute, where not be entitled to recover. If he used sand on the act is to be wilful in commission of crimes, the rolls after having been forbidden to do so, or under statutes, in which there is something it was wilful, and the defendants had a right more than a mere unintentional or accidental in- to discharge him. There was no pretence that tention to disobey. It means, in such cases, that it was done inadvertently, or by an accident. it has a bad purpose, or has malice, or something A trifling injury, the result of an accident, or of that kind connected with it; but in ordinary a single act of negligence, might not warrant a parlance it is the intentional disregard of instruc- dismissal, but the rule, as laid down by the tions to do a particular thing, not accidental." Court below, is far too broad. And what is sufficient reason for dismissal is a question o law for the Court.

We do not find any bad law in this paragraph. Yet it is not free from criticism. It was not well to confuse the jury by going into a definition of "wilful" as applied to a criminal charge. A thoroughly competent and intelligent jury would understand, from what the learned Judge said, that they were trying a case in the Common Pleas and not in the Quarter Sessions, and that "malice" or "a bad purpose" was not the test to be applied to the facts as developed upon the trial. But the average juryman might possibly have been confused, especially as the learned Judge failed to point out distinctly what the law was as applicable to the facts of this case. It would have been better to have omitted all reference to the criminal law.

It is very true, that an employer may not, without cause, discharge an employé who has contracted to serve for a term. The true rule was stated in Singer v. McCormick, 4 W. & S. 265, as follows: "Faithful service is a condition precedent to the right of wages, and where there is any misconduct inconsistent with the relation of master and servant, the former has an undoubted right, at any time, to put an end to the contract: Libhart v. Wood, 1 W. & S. 266. But if the dismissal be unjust, and without cause, the master cannot, by his wrongful discharge, prevent the servant from receiving compensation, not only for services rendered, but also the wages he would have earned had the contract

The third specification presents a more serious matter. It alleges that the Court erred in affirm-continued in force.” ing the plaintiff's second point. The point is as We need not multiply authorities. The rule follows: "Where a contract of employment is we believe to be as stated above, and I know of no clearly shown, even if the servant is discharged decided cases which conflict with it. None such for the commission of an injury to the defendant's is cited in appellee's brief, which is mostly taken property (unless such injury is of a gross or wan-up with a discussion of thé evidence. ton character), the employé is still entitled to The judgment is reversed. recover upon his contract, less such damage as the employer has suffered."

It

We cannot assent to this proposition. amounts to this: That an employé who is lawfully discharged for disobedience of orders, may recover his full wages for the whole term of his employment, less such damages as his employer can prove he has received in consequence of such disobedience. That is, the employer may set off any loss he has sustained to a demand for wages. And if he can show no actual loss, although his servant's disobedience may demoralize his establishment and injure his machinery in the future, the employé may continue, notwithstanding he refuses to obey orders, or he may draw full pay without rendering any services. This would be a beneficent rule for employés, but a very harsh rule for the employer. We are quite sure it is not the law. The plaintiff was discharged for disobedience; for using sand on the rolls when he

Oct. '91, 249.

S. H. T.

November 4, 1891.

Hoffstot v. Voigt.

Party-walls Use of by adjoining owners —
When share of cost to be paid by-Act of
April 8, 1872.

party-walls in the city of Pittsburgh provides for two The Act of April 8, 1872, P. L. 986, in regard to contingencies, first, for a new wall where none was before, which cannot be used at all till payment; and, secondly, for a new wall replacing an old one of which no new use can be made without paying.

If the old wall is sufficient for the old use, and the new wall is built solely at the desire of the builder,

the adjoining owner, who merely continues the old deeper than the old party-wall, and than the wall use, cannot be called upon to contribute for his neigh-as applied for by the plaintiff. This was done,

bor's improvement.

The statute does not make him in any way liable to new wall, and his liability is only for his proportion of

pay, until he begins himself to make a new use of the

so much of the wall as he uses.

H. a property owner in the city of Pittsburgh, being desirous to rebuild his party-wall, under the Act of April 8, 1872, referred the matter to the city engineer and the city building inspector, who surveyed the wall and assessed the proportion of cost to be paid by V., the adjoining owner. V. was present when this was done, and at his suggestion the new wall was built of greater thickness and with deeper foundations than the old wall. In building the new wall V.'s joists were replaced as in the old wall, but in the same manner and to the same extent, and no further use was made by V. of the new wall. In an action of debt by H. against V. to recover the amount

assessed against him by the building inspector, V. asked the Court to instruct the jury that under these circumstances H. had no right of action against him. This the Court refused to do, and gave binding instructions to the jury to find in favor of the plaintiff: Held, to be error.

Appeal of L. H. Voigt, defendant, from the judgment of the Common Pleas No. 1, of Allegheny County, in an action of debt brought by G. N. Hoffstot to recover $1625.71 to be paid immediately, and the further sum of $864, to be paid when the remainder of a certain party-wall should be used by defendant, said sum of $2489.71 being one-half of the cost of said party-wall erected by the plaintiff along the line of his own and defendant's lots of ground in the city of Pittsburgh.

whereby some additional expense was entailed upon the plaintiff, and the wall so built was made use of by the defendant to the same height as he had formerly used the old wall. The defendant claimed that the new party-wall was erected by the plaintiff for his own benefit and advantage, and not for the use of defendant, who derived no present use or advantage from it, but, on the contrary, was subjected to serious loss and damage by the invasion of his property and the erection of the new wall.

The defendant submitted the following points:1. There is no evidence in this case that the defendant used the party wall (erected by the plaintiff), by building into or against it, or in anyway using it for any new building or structure; therefore defendant is not liable in this action, and the plaintiff cannot recover.

2. The Act of Assembly of April 8, 1872, P. L. 986, imposes no duty or liability upon the owner of an adjoining lot to pay a moiety or any other portion of the cost of a party wall erected by the owner of the other adjoining lot, until the former shall use said wall by building into or against it, or in some way using it for a new building or structure, and in case of such uses, be is bound to pay for only so much of it as he may desire to use or does use.

Both of these points were refused by the Court. (First and second assignments of error.) The Court charged the jury as follows: "You are instructed to return a verdict for the plaintiff for one-half of the cost of the wall, with interest from October 27, 1886." (Third assignment of error.)

Verdict for plaintiff for $2965.86, and judg ment thereon; whereupon the defendant took this appeal, assigning för error the refusal of his points and the instruction to the jury as given above.

A. M. Brown (John S. Lambie with him), for appellant.

W. F. McCook, for appellee.

On the trial, before STOWE, P. J., the following facts appeared: The plaintiff and defendant owned adjoining lots. The plaintiff desiring to erect a new building upon his lot, applied to the city engineer, under the Act of April 8, 1872, P. L. 986, in regard to party-walls in Pittsburgh to "survey and mark off the line dividing said lots, and the land upon which said new wall was to be erected with the breadth and length of the same." When the wall was built the city building inspector made an estimate of the cost of said wall at the sum of $4979.42, and made an award that the defendant should pay to the plaintiff the sum of $2489.71, or half thereof, as follows: $1625.71, to be paid immediately, being for that portion of such new wall in use by the defendant, and the further sum of $864, to be paid when the re-ested will find the subject discussed in a note to mainder of said wall should be used by defendant. Bloch v. Isham, 7 Am. Law Register, N. S., 10. It was in evidence that the defendant was present But such regulation, as it exists in this and most with the plaintiff and the building inspector, in other States, is an interference with the rights pursuance of notice issued by the latter, for the and enjoyment of property, sustainable only on purpose of meeting the parties and determining the police power, and therefore to be governed upon the size and character of the party-wall; and measured by the strict extent of the statutory and that at this meeting the defendant requested to have the party-wall made larger and two feet

January 4, 1892. MITCHELL, J. The regulation of party walls is a very ancient form of exercise of the police power, and came to Pennsylvania from the customs of London, like so many other parts of our early law. Those inter

grant.

The plaintiff's right to recover in this action

therefore must clearly appear in the provisions of Oct. '90, 65.
the Act of April 8, 1872, P. L. 986. Section 5 of
that Act, providing for tearing down and re-
placing an existing party wall which is unsuited

for a new building about to be erected, is the Specific performance-Mining rights-Con

There is nothing in the testimony about the change in the plan and size of the wall upon derequest to call for a different rule in this case. The change was of no present advantage to defendant, nor did he make any promise to pay at an earlier day than the law fixed. It was a mere suggestion on his part, looking to the probable" future use of the wall, and it was apparently accepted by the plaintiff and the building inspector as wise and proper, in view of such future use. There was nothing in it to vary the present legal position of the parties.

Both of defendant's points should have been

erty, giving her $140 per annum for life, payable [tainly be that all mineral substances in, under, semi-annually, and so that at her death the or upon the said premises were reserved with the principal may, if she so directs by her will or other-right to obtain the same by mining processes. wise, become extinguished for the benefit of her This is certainly the common and ordinary brother or his heirs." meaning to the language with free mining privileges of all kinds,' not a term to restrict or enlarge privileges pertaining to oil and gas. Boring or drilling is the common language used to obtain oil or gas. It is a reservation of mineral substance joined with oil or gas. This construction of contract B has been carried into the defendant's deed tendered marked Exhibit D,' but in the light of all the evidence before the Master is it the true, honest construction of that contract?

It further set up that the contract for the conveyance of the land contained the following clause :

"Said Alexander hereby reserves all such timber upon said land as he may wish to use or manufacture; also all oil and gas in or under the said land, with free mining privileges of all kinds, right of way for roads of all kinds; also free ingress and egress over, into, upon, and under said lands, any and all parts

thereof at all times.

"Is it the construction given to it by the defendant and received by the plaintiffs? Is there not a surer guide to the construction in the defendant himself, to the understanding and inten

And alleged a tender of a deed in accordance therewith. It was shown by the proofs that the deed tendered contained the following clause:Excepting and reserving to the party of the first tion of the parties, than the rules heretofore part, his heirs and assigns, out of and from the prem-adopted? We have the defendant testifying

ises first above described, all timber growing upon the that he is the author and writer of contract said premises that he the said party of the first part, marked Exhibit B.' We have in evidence a his heirs or assigns, may require for use or manufacture, with the right of ingress and regress at all times letter of the defendant written to John Moody, hereafter, for cutting and carrying away the same. Jr, one of the plaintiffs, September 29, 1883, And excepting and reserving all oil, gas, and mineral marked Exhibit E,' only about forty days before substances in, under, or upon the said premises, and he signed and acknowledged the deed tendered, the right of entering in and upon the lands for the wherein he says: I want you to tell me by purpose of mining or otherwise winning and obtaining the said oil, gas, and mineral substances by mining or return mail what your family has to say to my other usual and customary processes. offer to give them $100, in lieu of my omission to reserve the coal in the bottom land. As a

There was also offered in evidence a letter matter of fact my omitting the reserve can be of from Alexander, as follows:

". . . . I want you to tell me by return mail what your family has to say to my offer to give them one hundred dollars in lieu of my omission to reserve the coal in the bottom lands. As matter of fact my omitting the reserve can be of no possible good to your family, but I prefer to have all my titles alike and it may at some time be an advantage to me so I propose to give them $100, and hope it will be satisfactory to all of them. Yours Truly,

"JOHN ALEXANDER."

no possible good to your family, but I prefer to have all my titles alike, and it may at some time be an advantage to me. So I propose to give them $100, and hope it will be satisfactory to all

of them.'

Mr. Alex

About the time of writing this letter we have evidence to the effect that three other deeds had been prepared between the parties, and they all proved unsatisfactory, showing that the defendant put a construction on that contract, under such circumstances as would require deThe cause was referred to a Master (M. M. liberation and thought on his part. Davis, Esq.,) without the amendment of parties ander, the defendant, when he was recalled, suggested by the answer. The Master reported: testifies: It was discovered that I had omitted The real matter in controversy seems to be the word coal, and I learned from some person, over the construction of the agreement of July 1, I am not quite sure whether it was John Moody, 1879, and mainly whether this agreement reserves but think it was John Moody, Jr., that as the to the defendant all mineral substances in, under, word coal was omitted in the reservation, they or upon the said premises' as set forth in his could hold the coal if any existed in the land,' deed of conveyance, with free mining privileges showing that the sense of the contract, as underof all kinds.'. . . . There is a reservation of stood by the defendant, was so received and unall oil and gas in or under the said land, and with derstood by the plaintiffs. In the light of this this reserve is united the unrestricted right, evidence did the defendant reserve the coal in, benefit, and advantage of all kinds to dig into the under, or upon the premises described in contract earth or of digging mines with all the convenient B? Did the plaintiff so understand it? The adopportunities and advantages for carrying on the mission was against the interest of the defendant, business, and for all land temporarily taken for which certainly is not very usual, unless true. It digging mines, and for all damages incurred by is always competent to prove what a party says entering upon and using said land in digging against his interest about the matter in controoperations, etc.' The answer would most cer-versy, no matter when made: Shirley v. Shirley,

59 Pa. 268. In the case before me the letter] appellant, so that upon the facts as then presented received is evidence containing a distinct ad- Rebecca Brown became a necessary party. The mission of a material fact, to wit, an omission to second question was also decided in favor of the reserve the coal; this fact cannot be excluded, be- appellant, so that Alexander was no longer concause the same letter closes with an offer of a cer- cluded by his letter, but was at liberty to insist tain sum of money to settle the matter: Arthur 2. upon his view of the proper legal construction of James, 28 Pa. 237. Can the defendant con- the contract. The third question was neither scientiously ask the Master to construe contract decided nor discussed; but the case went back in B so as to reserve to him in his deed the coal, order that the Court below might pass upon that when he has put a construction upon it himself, question without being hampered by its mistaken saying he had omitted the coal? Certainly this view of the conclusiveness of the letter. would be against the conscience of the Master as to what would be right in his judgment; which is that the coal should not be reserved by the defendant in his deed tendered."

Exceptions were filed by the defendant which were overruled by the Court and a decree entered in accordance with the prayer of the bill. The defendant appealed to the Supreme Court, and on October 24, 1887, the decree was reversed, and the record remitted for further proceedings: Alexander's Appeal, 20 WEEKLY NOTES, 283. The bill was subsequently amended by making Rebecca Brown a party, an amended answer was filed and the cause again referred to the same Master who reported, inter alia, “As the matter presented itself to the Supreme Court, the opinion filed in the case settled the question in favor of the appellant, that his deed marked Exhibit D' was a good and sufficient conveyance, carrying out the true intent and meaning of agreements. We recommend a decree that the deed tendered be delivered on payment of costs."

Plaintiffs filed exceptions, which, after argument, were dismissed by the Court, and a decree entered in accordance with the recommendation of the Master. Plaintiffs thereupon appealed, assigning for error this action of the Court.

The cause was argued on October 7, 1890, and on November 10, 1890, a reargument was ordered, and the reargument was heard October 5, 1891. George A. Jenks (Charles Corbet with him), for appellants.

When the case came up again in the Court below the learned Judge assumed that the reversal covered all three of the questions which had been raised, and accordingly held, following as he supposed the ruling of this Court, that the deed tendered by Alexander was a full compliance with the contract, and that Moody must accept it accordingly. We thus lose the benefit which might have been derived from a consideration of the question of construction, as an original one, by the learned Judge, but the question itself is squarely before us: Is the deed a full compliance with the contract?

The contract referred to is dated July 1, 1879, is for the sale of one hundred and fourteen and fourtenths acres of land, and contains the following exception: "Said Alexander hereby reserves all such timber on the land as he may wish to use or manufacture; also all oil and gas in or under the said lands with free mining privileges of all kinds, right of way for roads of all kinds," etc. The purchase-money has been paid in full, and Moody is now entitled to a deed. This is conceded, and a deed has been tendered in which the exception or reservation is translated by the conveyancer into the following language, "excepting and reserving to the party of the first part, his heirs and assigns, all gas, oil, coal, ores, and other minerals or mineral deposits in, under, or upon the said premises. And also all timber growing upon the same, together with the right to construct convenient roads over or under the same, and the right of ingress and egress for searching for, and winning and removing, the coal, timber, and other substances excepted and reserved." January 4, 1892. WILLIAMS, J. This case The contention of the appellee is that the words was here on the appeal of Alexander, in 1888. in the contract, "with free mining privileges of Three questions were then raised. First, was all kinds," following the exception of the oil and Rebecca Brown, who had advanced two thousand gas, operate as an exception of all minerals that dollars of the purchase-money due from Moody, may be won by mining, and justify the incorporain a position that entitled her to protection when tion of such exception into the deed. The appelthe title came to be made to Moody? Second, lants on the other hand contend that the words was the letter written by Alexander to John are referable to the exception of the oil and gas Moody, Jr., dated September 29, 1883, conclusive upon him as to the proper construction of the contract set up in the bill? Third, was the deed that Alexander had tendered to Moody a full compliance with the contract of sale?

Richard C. McMurtrie (Alexander C. White with him), for appellee.

The first question was decided in favor of the

which precedes them, and authorize in terms what the exception might authorize by implication, viz., the use of all the ordinary and appropriate means for finding, obtaining, and removing the oil and gas from the land sold.

The general rule is that by a grant of land all